HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deanna Steel
Applicant
-and-
Johnson Controls Automotive Canada LP and Paula Watkins
Respondents
DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Steel v. Johnson Controls Automotive Canada LP
APPEARANCES
Deanna Steel, Applicant
Teresa Shearer, Representative
Johnson Controls Automotive Canada LP and Paula Watkins, Respondents
Robert Atkinson, Counsel
1The applicant alleged that the respondents discriminated against and harassed her on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Among other things, the applicant alleged that the respondents discriminated against her in or around April 2013 by requiring her to perform work duties that exceeded her disability-related restrictions and by sending her home on April 5, 2013. The applicant also alleged that she was discriminated against and/or harassed when Paula Watkins, the corporate respondent’s Occupational Health Nurse, made certain comments about her to the insurer for the corporate respondent’s disability plans. Finally, the applicant alleged that the corporate respondent failed to carry out a proper investigation of a harassment complaint that she made.
2At the hearing, I heard evidence in support of the applicant’s case from the applicant as well as Dean Baumhauer, Dale Drummond, Tom Read and Angela Ward, all of whom are co-workers of the applicant. Mr. Baumhauer and Mr. Drummond were also representatives of the applicant’s union. I heard evidence in support of the respondents’ case from Ms. Watkins; James Capithorne, the applicant’s supervisor; and Judi Smith, Human Resources Manager for the corporate respondent.
3For the reasons that follow, I find that the applicant has not met her onus of establishing a breach of the Code on a balance of probabilities.
Applicable law
4Under s. 5 of the Code, every person has a right to equal treatment with respect to employment without discrimination because of a number of grounds including disability. Section 5(2) protects employees from harassment in employment because of certain grounds including disability.
5“Harassment” is defined in section 10 of the Code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.
6The applicant bears the onus of establishing discrimination and/or harassment on a balance of probabilities. To successfully establish harassment, the applicant must prove that it is more probable than not that the respondent’s actions constituted harassment because of one of the grounds protected under the Code. To successfully establish discrimination, an applicant must prove that it is more probable than not that that a discriminatory ground was a factor in the respondents’ actions. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109. The caselaw is clear that discrimination need only be one of the factors involved for there to be a violation of the Code. It is also not necessary to establish an intention to discriminate, as discrimination will often stem from unconscious biases or beliefs.
7I indicate below facts for which there was a conflict in the evidence. Where it was necessary to resolve a conflict in the evidence in order to arrive at my determinations, I have indicated my reasons for doing so below. In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354. In particular, when making credibility findings I have sought to determine which account of the facts in relation to each issue is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances.
Allegations re. Applicant’s being sent home on april 5, 2013
Factual Background
The Parties
8The corporate respondent is engaged in the business of manufacturing automotive seating and interior systems for various automotive manufacturers. It operates a plant that manufactures automotive interiors and another that manufactures automotive seats. The personal respondent Ms. Watkins was the corporate respondent’s Occupational Health Nurse during the time period relevant to this Application. The applicant remains employed with the corporate respondent, although she is currently on a Long Term Disability (“LTD”) leave. She last worked as a production worker in the corporate respondent’s seating plant.
Background to Applicant’s Injuries and Return to Work Plan
9The applicant sustained a work-related injury to her right wrist and forearm in June 2012 for which she received benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule B. The applicant and other employees of the corporate respondent were temporarily laid off due to a shortage of work from June 2012 to March 2013.
10Around the time of her return to work in or around late February/early March 2013, the applicant met with a Work Transition Specialist from the Workplace Safety and Insurance Board (“WSIB”), representatives of the corporate respondent and representatives from her union to put together a Return to Work Plan. The parties had at least three meetings with respect to the applicant’s work restrictions and her return to work. They held meetings on February 20, 2013 and on March 11, 2013. In addition, on March 6, 2011, the parties attended a Functional Work Capacity Assessment (“FWCA”) carried out by an occupational therapist employed by one of the WSIB’s health service providers.
11The occupational therapist produced an FWCA Summary Report which was sent to the parties on March 13, 2013. The Report appears to summarize findings that were shared with the parties during the FWCA. In the Report, the occupational therapist stated that he was asked to determine whether the applicant could resume work in a modified position which would allow the applicant to rotate through five positions on an hourly basis. In the Report, the occupational therapist confirmed that the modified position would be suitable with certain accommodations which included the following: that the applicant would work at her own pace for all five positions during lifting and carrying movements in each of the positions, the applicant would utilize a job rotation and take micro breaks.
12The FWCA was to form the basis of the applicant’s Return to Work Plan. The Return to Work Plan provided that the applicant would rotate between the following five positions which had been reviewed by the occupational therapist: Foam to Backboard, Five S Cleaning, Rear Station Steaming, Heating Pads, and Side Shields. The Plan noted that the applicant’s functional abilities required her to perform “sedentary to light self-paced activities”. It stated that the applicant must be provided recovery time through a change of tasks.
13It appears that the initial version of the Return to Work Plan discussed by the parties at their March 11, 2013 return to work meeting may not have specified a duration time for the applicant’s rotations. The WSIB Work Transition Specialist sent the parties a final version of the Return to Work Plan on March 12, 2013. The final version of the Return to Work Plan stated that rotations were to be 1-2 hours in duration.
14Although the applicant signed the Return to Work Plan, she objected to two of the five positions contained in the Plan -- the Rear Station Steaming and Heating Pad positions. A couple of days after the return to work meeting, she obtained a note from her doctor stating that she could not work in the steaming position. As noted below, the respondents did not assign the applicant to work in the two positions to which she had objected.
15The Return to Work Plan was consistent with the FWCA except that the Return to Work Plan stated that the applicant was capable of rotating between tasks every 1-2 hours whereas there is a reference in the FWCA to the duration of the rotations being one hour in length. It should be noted that the reference to an hourly rotation in the FWCA is somewhat ambiguous. It does not appear as part of the occupational therapist’s recommendations for accommodations. The reference to an hourly rotation appears twice in the FWCA Report. It first appears in a section titled “Assessment Overview” which appears to set out the assessment request made by the WSIB Work Transition Specialist. The Assessment Overview section states that the WSIB Work Transition Specialist requested an FWCA:
to determine if Ms. Steel could resume work in a modified position. The Position was formed using 5 various positions within the factory. This would allow Ms. Steel to rotate within the positions on an hourly basis.
16The FWCA then lists the applicant’s disability-related restrictions. The following restrictions are listed:
sedentary to light self-paced activities
lifting up to 10 lbs maximum on an occasional basis
work on a line for 8 hours would not be appropriate – she would need recovery time through a change of tasks
no vibration/vibrating tools
17There is no reference in this section to a maximum duration for the applicant’s rotations.
18A later section of the FWCA summarizes the occupational therapist’s recommendations for accommodations of the applicant’s disability. In that section, the FWCA report states that the occupational therapist considered the five positions set out above and that the modified role would have the applicant complete each of the positions for an hour before rotating to a different position.
19The FWCA finds such a modified rotational position suitable for the applicant so long as she is provided with the accommodations listed in the Report. The Report lists seven different recommendations and accommodations. These include permitting the applicant to work at her own pace during all five positions, utilizing job rotation and microbreaks. There is no reference in the recommendations section to a maximum rotation duration being one hour. Rather, the one hour rotation appears to have been the assumed duration of the rotations for the modified position.
20The applicant testified that, at the time she signed the Return to Work Plan, the rotation duration was not written in the document. She testified that the WSIB Work Transition Specialist added the rotation time later at the request of Ms. Watkins on behalf of the respondent. According to the applicant, the rotation time was discussed at the March 11, 2013 return to work meeting and Ms. Watkins said she wanted the rotation time to be 1-2 hours.
21The applicant testified that she questioned whether the 1-2 hour rotation time was consistent with the collective agreement. The WSIB Work Transition Specialist said she would contact the applicant’s union to look into it. In a status update memo to the applicant’s WSIB file, the Work Transition Specialist noted that a union representative advised that the collective agreement did not address the length of rotations but that it was company policy that rotations were to be 1-2 hours in length. The union representative also stated that the corporate respondent had demonstrated good faith in accommodating workers who required more frequent rotations.
22Ms. Watkins testified that she asked that the rotation time be 1-2 hours because it would help to have flexibility for operational reasons. She testified that the WSIB Work Transition Specialist wrote in pen on the Return to Work Plan that the rotation would be 1-2 hours before the parties signed the Plan.
23At the time the applicant returned to work, she had yet to receive a copy of the FWCA prepared by the occupational therapist. She received the FWCA a couple of days after she returned to work. The applicant testified that when she reviewed the FWCA she noted that the occupational therapist made reference to the length of rotations as being one hour.
24When the applicant returned to work, her supervisor provided her with a schedule for her rotations. The schedule set out three positions among which the applicant would rotate. The duration of the rotations ranged from just under 1 hour to 1 hour and 20 minutes. The schedule did not include the two tasks to which the applicant objected in the return to work meeting. The applicant testified that her supervisor never mentioned to her that she might be asked to work longer at a task than the time set out in the schedule he gave her. The applicant followed the schedule with no issues from her first day back to work, March 13, 2013, until April 5, 2013.
Events of April 5, 2013
25On April 5, 2013, the applicant continued to follow the work schedule she had been following since her return to work. Around mid-morning, she worked in the backboard position. Mr. Capithorne, the applicant’s supervisor, and Mr. Baumhauer, one of the applicant’s union representatives, testified that the backboard task was a sedentary task that involved placing small foam pieces on backboards that are eventually used in vehicle seats. The backboard task does not form part of any of the assembly lines at the corporate respondent’s plant. It is separate from the assembly line. However, the backboards that are put together are then used on the assembly line. The idea is that employees working on backboards will work ahead and produce an inventory of backboards that may then be fed onto the assembly line as needed.
26On April 5, 2013, the applicant worked on backboards for an hour, as set out in the schedule that Mr. Capithorne had given her, and then moved to the next task which involved light cleaning duties. The applicant testified that she was aware that the inventory of backboards was running out when she rotated to her next task.
27Shortly after she moved to the next task, Mr. Capithorne told her to return to backboards since the backboard inventory was getting low. The applicant testified that she told Mr. Capithorne that she did not want to go back to backboards because she had already completed an hour on that task and she was “hurting”.
28The applicant went over to get Mr. Baumhauer, her union representative. The applicant, Mr. Baumhauer and Mr. Capithorne spoke off to the side between the cafeteria and the door to an office. Mr. Capithorne told Mr. Baumhauer that it was his understanding that the applicant could work for up to two hours on a rotation. Mr. Capithorne testified that he called Ms. Watkins to verify his understanding of the applicant’s restrictions. He then called Judi Smith, the company’s Human Resources Manager, to ask whether he could give the applicant a direct order to return to backboards and she said yes. Mr. Capithorne returned to the applicant and ordered her to return to backboards. When the applicant refused, he told her to “badge out”, meaning that she should leave the workplace.
29The applicant testified that, before he badged her out, Mr. Capithorne kept yelling at her to “do it or go home”. The applicant said that her union representative, Mr. Baumhauer, could not get much out because of the fact that Mr. Capithorne was yelling at her. Mr. Capithorne denied yelling at the applicant. Mr. Baumhauer, who was called as a witness by the applicant, testified that Mr. Capithorne did not yell at the applicant but instead that his tone of voice was “firm”.
30In his testimony at the hearing Mr. Capithorne stated that the applicant refused to return to backboards because she felt she did not need to do more than the one hour set out in the schedule he had given her upon her return to work. Once he had confirmed with Ms. Watkins that the applicant’s Return to Work Plan stated she was capable of performing tasks for 1-2 hours, and once he had spoken with Ms. Smith, he felt he was on solid ground ordering her to return to do more work on backboards. Mr. Capithorne denied that the applicant had said she was hurting but instead only said that she did not want to return to backboards because she had completed her hour on that task. Mr. Capithorne said he told the applicant it was his understanding that she could do work for up to two hours to which the applicant replied that she had done the one hour that was set out in the schedule he had given her.
31Ms. Watkins corroborated Mr. Capithorne’s testimony that he had called her to determine whether the applicant could perform the backboard task for more than an hour. She confirmed that she told Mr. Capithorne that the applicant’s Return to Work Plan stated that she could do the task for up to two hours. Ms. Watkins testified that Mr. Capithorne had mentioned to her that the applicant had refused to return to backboards because she had already worked at the task for an hour and she was “sore”.
32In light of the consistency between Ms. Watkins’ testimony and the applicant’s testimony on this point, I find that the applicant did in fact say to Mr. Capithorne that she did not want to return to backboards because she had already done the task for an hour and she was “hurting” or “sore”. Mr. Capithorne’s denial that she mentioned “hurting” or being “sore” is not credible or reliable in light of the consistency in the testimony by the applicant and Ms. Watkins on this point. The only way Ms. Watkins could have become aware that the applicant said she was “hurting” or “sore” would have been from Mr. Capithorne over the phone that day.
33Ms. Watkins testified that in the Return to Work meetings with the applicant, the WSIB discussed the difference between being sore and doing further damage to oneself. She testified that the applicant’s Return to Work Plan was designed to ensure that she was not causing further damage to herself.
34The applicant testified that, upon arriving to work on April 5, 2013, she told one of the corporate respondent’s human resources representatives, Nancy Mayer, that she had received results of an MRI and that she was being referred to a neurosurgeon. She told Ms. Mayer that she felt her condition was getting worse. She asked Ms. Mayer if she wanted a copy of the MRI. Ms. Mayer called Ms. Watkins who said that the respondents did not need a copy of the MRI. The day before, the applicant had forwarded the MRI results to her WSIB case manager who told her to take microbreaks as needed. The applicant testified that she felt that the respondents bullied her into leaving work on April 5, 2013 because her condition was getting worse.
35Unfortunately, Ms. Mayer passed away before the hearing. Ms. Watkins testified that she had no recollection of receiving a call from Ms. Mayer asking her whether the respondents required a copy of the applicant’s MRI report. Ms. Watkins testified that, in any event, she normally would not herself keep a copy of a worker’s MRI report in a case where the WSIB was involved. She stated that she typically would advise the worker to forward the MRI Report to their WSIB case worker.
36I find it more likely than not that the applicant did advise Ms. Mayer of her MRI results, the fact that she was being referred to a neurosurgeon and her belief that her condition was getting worse. A status update memo in her WSIB file indicates that she had provided a copy of her MRI report to the WSIB the day before. The applicant also refers to the fact that she told Ms. Mayer about her referral to a neurosurgeon in a subsequent e-mail she sent to Judi Smith in June 2013. In light of this evidence, I find her testimony credible that she raised these issues with Ms. Mayer on the morning of April 5, 2013.
Aftermath of April 5, 2013 Events
37After leaving the workplace, the applicant contacted the WSIB Work Transition Specialist who told her she should return to work or she would be at risk of being fired. The WSIB ended up closing her file due to her failure to complete the requirements of her Return to Work Plan. The applicant appealed this decision to an Appeals Resolution Officer who upheld the decision to close her Return to Work Plan.
38April 5, 2013 was a Friday. The following Monday, April 8, 2013, the applicant applied for Short Term Disability (“STD”) benefits. Her application was approved by Manulife Financial. She received STD benefits and then successfully applied for LTD benefits. She was still receiving LTD benefits at the time of the hearing.
Parties’ Submissions
39The applicant submitted that the respondents required her to perform work that was inconsistent with her Return to Work Plan by directing her to return to backboards on April 5, 2013. She argued that this direction was inconsistent with her Return to Work Plan, the FWCA prepared by the occupational therapist and also the schedule put together by her supervisor. She also argued that the backboards task was not consistent with her Return to Work Plan because it was not self-paced but instead tied to the needs of the assembly line. She argued that she felt it was discriminatory for the respondents to direct her to do more backboards when she said she was hurting. She stated that, by yelling at her and directing her to return to backboards in an open area close to co-workers, Mr. Capithorne violated her right to dignity and confidentiality. Overall, the applicant submitted that she felt like the respondents treated her with respect until she became injured and that, after that, she was treated as a problem employee.
40The respondents argued that the applicant had failed to make out even a prima facie case of discrimination since she failed to demonstrate any adverse impact. The respondents argued that there was no basis for the applicant’s claim that she was forced to work beyond the restrictions set out in the Return to Work Plan. The respondents pointed to the fact that the Plan states that the applicant was capable of rotating every one to two hours. Therefore, the respondents argued that it was consistent with her Plan to require her to return to backboards after she had only worked on that task for one hour.
Analysis and Findings
41It is worth noting at the outset that the Tribunal does not have a general power to adjudicate with respect to labour relations. The Tribunal’s jurisdiction is to determine whether there has been a breach of the Code.
42The applicant’s Code-related allegations appeared to be two-fold. First, that the manner in which Mr. Capithorne treated her on April 5, 2013 constituted harassment under the Code. Second, although the applicant did not frame her submissions this way, the essence of her argument with respect to the Return to Work Plan was that the respondents discriminated against her by requiring her to perform work that exceeded her disability-related restrictions.
Alleged harassment
43With respect to the issue of harassment, I am not persuaded that Mr. Capithorne’s actions on April 5, 2013 amounted to disability-related harassment under the Code. The Code defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. I am not persuaded that Mr. Capithorne’s actions met this definition. Although the applicant felt that Mr. Capithorne violated her right to dignity and confidentiality, I am not persuaded that his actions amounted to a course of vexatious comment or conduct for this reason.
44Mr. Capithorne issued a direction to the applicant to return to work at a task that was consistent with her WSIB Return to Work Plan. The evidence at the hearing did not support the applicant’s testimony that he “yelled” at her, as she alleged. On this point, I find it noteworthy that one of the applicant’s own witnesses, the union steward who was present during the events of April 5, 2013, testified that Mr. Capithorne had not yelled at the applicant but that he was “firm” with her.
45Although it may have been better for Mr. Capithorne to address the applicant in a private area away from the shop floor, the evidence was that they were standing off to the side between the cafeteria and an office door. In the circumstances of this case, I am not persuaded that the location of Mr. Capithorne’s discussions with the applicant or the tone of them transform his comments or conduct into the kind of course of vexatious comment or conduct required to make out harassment under the Code.
46Finally, I am not persuaded that the evidence advanced at the hearing supports the applicant’s belief that the respondents were harassing her because her disability may have been getting worse or because she had advised Ms. Mayer that she had to see a neurosurgeon. The evidence supports the testimony from the respondents’ witnesses that Mr. Capithorne’s comments and actions were aimed at directing her to perform work that was consistent with her WSIB Return to Work Plan. As noted above, Mr. Capithorne called Ms. Watkins to verify that a direction that the applicant return to the backboard task would be consistent with her Return to Work Plan. Moreover, there was no evidence that Mr. Capithorne was aware of the information the applicant conveyed to Ms. Mayer earlier in her shift.
47For these reasons, I find the applicant has not established that Mr. Capithorne’s actions or comments on April 5, 2013 amounted to disability-related harassment under the Code.
Alleged Requirement to Perform Work that Exceeded Disability-Related Restrictions
48I now turn to the applicant’s argument that the respondents violated the Code by directing her to do work that was inconsistent with her Return to Work Plan, the FWCA prepared by the occupational therapist and the schedule put together by her supervisor. It should be noted that the Tribunal does not have a general power to enforce the Return to Work Plan prepared by the WSIB or the schedule that was prepared by the applicant’s supervisor. The Tribunal’s jurisdiction under the Code is to determine whether an applicant was discriminated against because of disability. Discrimination may take the form of a work requirement that has an adverse impact on an applicant because of their disability: see s. 11 of the Code. The essence of the applicant’s Code related allegation is that the respondents discriminated against her by requiring her to perform work that exceeded her disability-related restrictions.
49I note that even if the Return to Work Plan set out certain work modifications, there is no evidence that the Work Transition Specialist considered the corporate respondent’s duty to accommodate up to the point of undue hardship under the Code. Therefore, the fact that the Return to Work Plan set out a rotation of 1-2 hours is not determinative of the issue before me. The issue before me is not whether the respondents’ direction that the applicant return to work at the backboards task was consistent with her Return to Work Plan. It is instead whether the direction was discriminatory and whether the respondents breached their duty to accommodate the applicant’s disability-related restrictions.
50The difficulty with the applicant’s allegation that she was forced to exceed her disability-related restrictions is an evidentiary one. The only medical evidence before me relating to the applicant’s disability-related restrictions is the FWCA assessment and the Return to Work Plan. As noted above, the section of the FWCA assessment that outlines the applicant’s disability-related restrictions speaks only to the need for recovery time through a change of tasks. It does not set out a maximum duration for each rotation. In his list of recommendations for necessary accommodations, the occupational therapist does not refer to a maximum duration for each rotation as a required accommodation. Rather than setting one hour as a maximum duration for the applicant’s rotations, the FWCA Report appears to have been organized around the assumption that the rotations would be one hour in duration. In other words, the FWCA Report supports the view that the applicant was capable of performing the tasks for an hour in duration but is ambiguous on the maximum amount of time she was capable of performing each task.
51The occupational therapist who prepared the FWCA was not called to testify at the hearing. Therefore, I am left with insufficient evidence to support the applicant’s view that the 1-2 hour rotation duration exceeded the applicant’s disability-related restrictions.
52The applicant did not provide any medical information to the respondents to support her view that she was unable to work longer than one hour at any particular task. As noted above, the applicant did object to certain parts of the Return to Work Plan but the duration of the rotation was not one of them. The applicant provided a doctor’s note in support of her position that she was unable to perform one of the positions contained in the Return to Work Plan. However, she provided no medical information that would support her assertion that she was unable to perform a rotation that exceeded one hour. In fact, the applicant accepted the work rotation schedule presented to her by her supervisor which, itself, contained a rotation at one of the tasks for 1 hour and 20 minutes.
53The evidence admitted at the hearing showed that the applicant questioned whether the 1-2 hour rotation was consistent with the collective agreement. However, the applicant did not provide sufficient medical evidence, either to the respondents or at the hearing, to support her view that a rotation duration of more than an hour exceeded her disability-related restrictions. As noted above, the FWCA was ambiguous on the issue and there was no other medical information to support such a restriction. For all these reasons, I find the medical evidence is insufficient to support the applicant’s view that the requirement that she perform the backboards task for more than an hour exceeded her disability-related restrictions.
54I also am not persuaded that the evidence supports the applicant’s claim that the respondents breached the Code by failing to provide the applicant with self-paced work. The applicant claimed that the backboards position was not self-paced because it was tied to the assembly line. It was not disputed that the backboards position was not on the assembly line. It was related to the line only insofar as, once assembled, backboards would be fed onto the line. As noted above, the work was intended to be organized so that a worker would work ahead and produce an inventory of backboards that could be fed onto the assembly line as needed.
55It may be a breach in the Code in some circumstances for a respondent to require an applicant to exceed the pace of work required by her disability-related restrictions. However, the evidence before me does not support such a claim. It appears that the applicant was required to work at a steady pace but still at her own pace. Although the backboards were fed onto the line eventually, the applicant was not required to keep up a certain pace to keep up with the assembly line as would be the case for workers who work on the line. Based on this evidence, I cannot find, on a balance of probabilities, that the backboards assignment discriminated against the applicant because it did not meet her disability-related requirement that she perform self-paced work.
56As noted above, the applicant also argued that it was discriminatory for the respondents to direct her to go back to the backboards task when she said that she was “hurting” or “sore”. Depending on the facts, an employee’s claim that they are hurting or in pain may provide an indication that the modified work being assigned to them exceeds their disability-related restrictions. Certainly, an employee’s assertion of being in pain must be taken seriously by employers, not only for Code reasons, but also for reasons of occupational health and safety. An employer who rigidly enforces a WSIB Return to Work Plan and ignores an employee’s claims of being in pain may do so at its peril.
57I find it significant in this case that the applicant only made her statement that she was hurting or sore after she was directed to continue working past the one hour set out in the schedule that Mr. Capithorne provided to her. She had followed her Return to Work Plan without any claims of pain up to that point. Even at the hearing she stated that Mr. Capithorne never mentioned to her that she might be asked to work longer at a task than the time set out in the schedule he gave her. In all of these circumstances, I find that the applicant’s claim that she was hurting or sore, on its own, did not trigger a duty on the part of the respondent to inquire further into whether her Return to Work Plan was consistent with her disability-related restrictions.
58I have also considered whether the applicant’s interaction with Ms. Mayer at the start of her shift put an onus on the respondent to consider whether the applicant’s work restrictions had changed. As noted above, when the applicant arrived at work on April 5, 2013 she told a representative of the corporate respondent that she had just had an MRI and advised that she felt like her medical condition was getting worse. She provided a copy of the MRI to her WSIB case manager but the WSIB case manager did not change the restrictions in the applicant’s Return to Work Plan. The applicant also admitted the MRI report into evidence. What the applicant did not provide, either to the corporate respondent or at the hearing, is any information from her doctor to support her contention that her disability-related restrictions had changed such that the restrictions set out in her Return to Work Plan needed to be altered. On balance, I am left with insufficient evidence from which I can infer any breach of the Code on the part of the respondents on the facts of this case.
59For all these reasons, I find the applicant has not met her onus of establishing on a balance of probabilities that the respondents discriminated against her by requiring her to perform work that exceeded her disability-related restrictions.
Allegations re. Ms. watkins’ comments to MaNulife
Factual Background
60When the applicant applied for STD benefits, Ms. Watkins wrote a letter to Manulife, the insurance provider for the STD plan provided by the corporate respondent. In her letter to the case manager for the applicant’s claim, Ms. Watkins responded to certain questions regarding the applicant’s WSIB claim. Ms. Watkins reviewed the history of the claim and the fact that the applicant had begun modified duties in March 2012 and that she was laid off in April. Ms. Watkins noted that the applicant had received a layoff notice two weeks before she injured herself at work. She then stated “Our people know the system well!”
61Ms. Watkins testified that she would typically provide Manulife with background information that was relevant to the adjudication of employees’ STD or LTD claims. She maintained that her view with respect to the applicant’s WSIB claim was relevant as, historically, the corporate respondent sees the number of WSIB claims go up prior to scheduled layoffs. According to Ms. Watkins, many employees file illegitimate claims for disability benefits in an attempt to secure an income during the layoff period. Ms. Watkins acknowledged that the comment “Our people know the system well!” was inappropriate and said that she regrets the comment. She testified that the comment was just a flippant comment from one “co-worker” to another. She stated that she had no ill intent in making the comment. She said she intended to refer to the corporate respondent’s unionized environment in which employees are well versed on how the WSIB works.
62In addition to the comment set out above, Ms. Watkins commented in an e-mail to the Manulife case manager that the applicant was unpleasant to deal with. She stated “Free free to call her but consider yourself warned.... she is not very pleasant!” Ms. Watkins testified that in her past dealings with the applicant, she found her to be short and aggressive. Ms. Watkins also recounted an interaction in which the applicant had accused her of being unethical and shook her finger at her, an interaction which she said left her unnerved.
Parties’ Submissions
63The applicant submitted that Ms. Watkins’ comments to the Manulife case manager about her were unprofessional and discriminatory, and could have had an adverse effect on her ability to access STD and LTD benefits. The respondents conceded that Ms. Watkins’ comments were inappropriate but submitted that they did not amount to discrimination or harassment. They also argued that no damage flowed from the comments since the applicant did successfully qualify for STD and LTD benefits.
Analysis and Findings
64Ms. Watkins’ comments to the Manulife case manager were clearly inappropriate, as she herself acknowledged at the hearing. The question I must decide is not whether her comments were inappropriate, unfair or unprofessional. The question I must decide is whether they amounted to discrimination or harassment under the Code.
65I am troubled by the fact that Ms. Watkins characterized the comments as simply being flippant comments made to a “co-worker”. The Manulife case manager was manifestly not a co-worker. She worked for the insurance company that would be adjudicating the applicant’s STD claim as well as any subsequent LTD claim. While Ms. Watkins felt that the comment was relevant due to the increase in WSIB claims prior to layoffs, I do not agree. As Ms. Watkins was well aware, the applicant’s WSIB claim had been approved by the WSIB. Therefore, the information being provided by Ms. Watkins about the rise in illegitimate WSIB claims prior to layoffs was wholly inapplicable and irrelevant to the applicant’s claim which had been accepted as legitimate by the WSIB. Ms. Watkins’ comments were not simply irrelevant, they could very well have been highly prejudicial to the applicant’s claim.
66As inappropriate as Ms. Watkins’ comments were, I cannot find they were sufficiently extreme, egregious or virulent as to constitute discrimination or harassment under the Code. I note that the comments were not made to the applicant herself. She appears to only have become aware of the comments when she requested a copy of her Manulife file. The comments also did not have any financial impact on the applicant since she did qualify for STD and LTD. In these circumstances, while I find the comments to be highly inappropriate, I cannot find on a balance of probabilities that they amount to discrimination or harassment under the Code.
Allegations re. investigation
Factual Background
67On June 7, 2013, the applicant sent an e-mail to Judi Smith saying she was feeling harassed. Her e-mail stated as follows:
Judy I am really getting the feeling I am being harassed because I am injured and I am not going to stand for it.
68Shortly after the applicant sent the e-mail, Ms. Smith responded as follows:
Hi Deanna,
Could you please provide me additional detail with regard to the statement below? Many thanks...jls
69The applicant replied as follows:
It has been continual harassment examples are James sending me home not long after I told Nancy I had to see a neurosurgeon and no cancelling my benefits, what next.
70Ms. Smith replied saying “I will look into this... I will ensure we touch base asap!”.
71Ms. Smith testified that she asked another human resources representative, Helen Mayer, to look into the benefits issue. According to Ms. Smith, Ms. Mayer discovered that Manulife had mistakenly cancelled the applicant’s health benefits and these benefits were immediately restored. Ms. Mayer communicated this outcome to the applicant.
72With respect to the applicant’s claim that she was harassed the day she was sent home, Ms. Smith looked into the matter by seeking witness statements from the applicant’s supervisor and her union representative. She did not seek a witness statement from the applicant, nor did she interview the applicant.
73The applicant testified that she expected that Ms. Smith would contact her as part of her investigation. She interpreted Ms. Smith’s comment that she would be “in touch” to mean that she (the applicant) would be consulted as part of the harassment investigation.
74Ms. Smith testified that she had asked the applicant for details in her e-mail and the applicant had provided the details that were relevant to her in her responding e-mail. She considered this to be enough information. She also noted that in her e-mail she made clear that the applicant was free to contact her if she had any concerns or wanted to provide additional information. In addition, Ms. Smith said she would have spoken to the applicant if she had been in the workplace but she wanted to respect the fact that the applicant was on sick leave.
75Ms. Smith obtained witness statements from the applicant’s supervisor and her union representative regarding the April 5, 2013 incident in which the applicant was required to leave work. Ultimately, Ms. Smith communicated to the applicant her finding that no harassment had occurred.
Parties’ Submissions
76The applicant submitted that the corporate respondent failed to carry out a proper harassment investigation since it obtained witness statements from her supervisor and union representative about the April 5, 2013 incident but did not obtain one from her. The respondents argued that the investigation was adequate in the circumstances, that it took the claim seriously even though it was filed two months after the April 5, 2013 incident and that the applicant provided little detail in her e-mail to Ms. Smith.
Analysis and Findings
77The Tribunal has held that a respondent has a duty to investigate complaints of discrimination or harassment in order to ensure that it is achieving the Code-mandated responsibility of operating a discrimination-free environment. See Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (“Laskowska”). A failure to take steps to address allegations of discrimination may result in a respondent being held liable for violating the Code. The standard is one of reasonableness, not correctness or perfection: See Laskowska at para. 60.
78I note that the Tribunal has held that it is not a contravention of the Code if a respondent fails to investigate a complaint of discrimination that the Tribunal subsequently finds to be unfounded. See Scaduto v. Insurance Search Bureau, 2014 HRTO 250 at paras. 78-79.
79Even assuming that the corporate respondent could be held liable for a failure to properly investigate the applicant’s complaint in this case, I find that the respondent’s investigation was reasonable in the circumstances.
80There is no one form of investigation that is required under the Code. The reasonableness of an investigation will depend on the circumstances surrounding the human rights complaint made by an applicant. I do agree with the applicant that all parties must be provided with an opportunity to take part in an investigation. However, I find that Ms. Smith’s request that the applicant provide her with details of her harassment allegation was an invitation to her to provide her side of the story.
81It would have been better for Ms. Smith to follow up with the applicant to seek a formal witness statement similar to the ones she obtained from the applicant’s supervisor and her union representative. However, given the brevity of the applicant’s e-mail to Ms. Smith and the fact that the applicant was on leave, I find that it was reasonable for Ms. Smith to simply request further details by reply e-mail as she did. The fact that the applicant failed to provide a fuller statement of the events about which she was complaining does not render Ms. Smith’s course of action unreasonable in the circumstances.
82While they were not ideal or perfect, I find that the steps taken by the corporate respondent to investigate the allegations set out in the applicant’s e-mail were reasonable in the circumstances.
ORDER
83For the reasons set out above, the Application is dismissed.
Dated at Toronto, this 5th day of May, 2015.
“Signed by”
Jo-Anne Pickel
Vice-chair